‘TWISTING TITLE IX’ WEEK: Title IX Enforcement Has Continued Negative Effect on Freedom of Expression

As my colleague Samantha Harris wrote yesterday, students’ due process rights have been endangered by the Office for Civil Rights’ (OCR’s) guidance relating to, and enforcement of, Title IX over the past five years. Unfortunately, OCR has also taken several steps in recent years that have spurred colleges and universities to violate students’ and professors’ free speech rights under the guise of protecting students from sexual harassment.

Title IX requires schools to respond to allegations of sexual harassment in order to ensure no students are denied access to an education because of their sex. Accordingly, ensuring that schools understand the boundaries of what constitutes “sexual harassment” falls under OCR’s purview. OCR used to be a positive force when it came to distinguishing sexual harassment from constitutionally protected speech. In a 2003 “Dear Colleague” letter on the First Amendment, for example, OCR emphasized the importance of maintaining freedom of speech and of properly defining “harassment” so as not to infringe on expressive rights. The agency wrote:

Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.

This is an accurate reflection of the Supreme Court’s holding in Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999), that student-on-student harassment is conduct “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Speech that does not rise to that level remains constitutionally protected.

In stark contrast, OCR’s 2011 “Dear Colleague” letter on sexual violence gives colleges and universities thorough and detailed instructions on how to respond to allegations of sexual harassment and assault, but it fails to remind institutions that in addressing sexual misconduct, it must respect students’ expressive rights, too. The letter states simply:

Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.

Shortly after this letter was published, FIRE expressed the concern “that schools seeking to comply with OCR’s increased emphasis on sexual harassment education and prevention will fail to promulgate and disseminate sexual harassment policies that provide sufficient protection for student speech.” Indeed, policies modeled on the 2011 letter’s harassment provision would prohibit a huge amount of protected expression, as the vast majority of unwelcome verbal conduct of a sexual nature falls short of the Supreme Court’s definition of “harassment.”

Moreover, as followers of FIRE’s work know, colleges and universities frequently view censorship and punishment of speech as a reasonable solution to a range of student complaints. They need near-constant reminders that censorship is not an acceptable answer at public institutions or private schools that promise freedom of expression—and even with such reminders, schools often commit egregious violations of constitutional or contractual rights.

But in 2013, OCR did much worse than its vague and incomplete statement on harassment from its 2011 letter. At the conclusion of a joint investigation by OCR and the Department of Justice into the University of Montana’s handling of sexual assault allegations, DOJ and the Department of Education (of which OCR is a part) released a findings letter and resolution agreement among the three parties. In the findings letter, the Departments defined “sexual harassment” broadly as “any unwelcome conduct of a sexual nature,” including “verbal … conduct”—that is, speech. It further proclaimed that the agreement would “serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” Thus, through its resolution of this investigation, the federal government sent a clear message to thousands of colleges and universities: They must enact unconstitutionally overbroad speech codes in order to comply with Title IX.

In response, just as FIRE worried, colleges and universities across the country have enacted speech codes that mirror or track the “blueprint” and infringe on a wide range of protected expression. Severalblueprint-esquepolicies were named FIRE’s Speech Codes of the Month, but hundreds of similarly unlawful policies remain effectively unchecked at institutions nationwide.

Making matters worse, earlier this year, DOJ doubled down on its troubling speech code mandate in its findings letter concluding an investigation of the University of New Mexico. In FIRE’s press release on the event, we reviewed just some of the circumstances in which students and professors have been investigated and punished for supposed harassment, despite having engaged only in clearly protected expression.

And FIRE isn’t alone in our concern over OCR’s abandonment of First Amendment principles.

The American Association of University Professors (AAUP) released a report this year on “The History, Uses, and Abuses of Title IX,” which is well worth reading in full. The report’s executive summary notes the AAUP’s conclusion “that the current interpretation, implementation, and enforcement of Title IX has compromised the realization of meaningful educational goals that lead to sexually safe campuses.” Among other problems, OCR’s recent actions threaten “academic discussion of sex and sexuality,” faculty members’ “protected speech in teaching, research, and extramural contexts,” and “robust faculty governance.”

Institutions must remember that it is possible to both respect the campus community’s right to freedom of expression and respond appropriately to allegations of sexual harassment. By utilizing the Supreme Court’s definition of harassment, colleges and universities can achieve these twin goals simultaneously. And as long as OCR directs institutions to do otherwise, institutions should defy OCR. After all, no document or letter from OCR can trump the First Amendment.

EDITOR’S NOTE: This piece is part of FIRE’s “Twisting Title IX Week,” celebrating the release of FIRE Executive Director Robert Shibley’s new book, Twisting Title IX. This week, we’re featuring a series of Title IX articles to get you caught up on how this law is being used in unconstitutional and unlawful ways to threaten civil rights on campus.